A Lesson in the Separation of Powers

Something significant occurred this morning. The Supreme Court issued in an opinion in Utility Air Regulatory Group v. Environmental Protection Agency that definitively upholds the Constitution’s separation of powers.

“The ruling amounts to an overdue correction to Massachusetts v. EPA, the 5-4 ruling in 2007 that held greenhouse gases can be “pollutants” under clean air laws that were written decades before the carbon panic. That decision wrongly rewrote the Clean Air Act, but it was also always narrower than liberals made it out to be and never the license for policy rewrites that became the EPA’s interpretation.

The problem for the agency is that the Clean Air Act sets precise emissions thresholds for “major sources” of a given pollutant, defined as more than either 100 or 250 tons annually. Congress had in mind traditional industrial byproducts like SOX or ozone, but the ceilings make no sense for ubiquitous carbon. Any CO2 rule would thus reach well beyond power plants and factories to millions of small carbon sources like hospitals, grocery stores, shopping centers, farms and churches, with penalties of $37,500 per day for violations.

To obey the law as written, the EPA estimated, permit applications under one program would have climbed to 6.1 million a year from 15,000 today, while administrative costs in another would have exploded to $1.5 billion from $12 million. The agency conceded that such a regime would be “unrecognizable” to Congress. Yet in 2009 the EPA regulated anyway and asserted unilateral power to “tailor” the law. It baldly increased the thresholds by as much as a thousandfold to avoid having to supervise elementary schools the same as cement mixers.

Amid a tangle of partial concurrences and dissents, Justice Antonin Scalia wrote the controlling 5-4 opinion striking down this tailoring as illegal.”

Were we to recognize the authority claimed by EPA in the Tailoring Rule, we would deal a severe blow to the Constitution’s separation of powers.

In his opinion, Justice Antonin Scalia wrote: “Were we to recognize the authority claimed by EPA in the Tailoring Rule, we would deal a severe blow to the Constitution’s separation of powers. Under our system of government, Congress makes laws and the President, acting at times through agencies like EPA, “faithfully execute[s]” them. The power of executing the laws necessarily includes both authority and responsibility to resolve some questions left open by Congress that arise during the law’s administration. But it does not include a power to revise clear statutory terms that turn out not to work in practice.”

Although the outcome of this court case can be considered a victory for those who wish to uphold the Constitution, it is important to remember how narrowly the victory was won.

As Jonathan Keim with the National Review wrote, “Although a majority of justices voted for each part of Justice Scalia’s opinion (5-4 for I, II-A and II-B-1; 7-2 for II-B-2), it’s important not to overestimate the extent of agreement on the Court. If this case is any indication, EPA’s inability to rewrite statutes willy-nilly rests on a single vote.”